Patna High Court
Sheonandan Singh And Anr. vs Mt. Maida Kuer And Anr. on 17 March, 1950
Equivalent citations: AIR1950PAT447, AIR 1950 PATNA 447
JUDGMENT Rai, J.
1. This is an appeal by defendants 1 and 2 against the judgment and the decree passed by the Subordinate Judge of Arrah dated nth October 1947, reversing those of the Munsif of Sasaram dated 8th February 1946.
2. The plaintiff filed the suit for a declaration that a rehan bond dated 27th April 1938, executed by defendant 1 in favour of defendant 3 and a sale deed dated 8th December 1937, executed by defendant 1 in favour of defendant 2 are inoperative and not binding upon the plaintiff. According to the case of the plaintiff, Ramdutt Rai and Sahdeo Rai were two brothers. Ramdutt Rai died about 12 years ago leaving his widow ML Maida Kuer, the plaintiff. Sahdeo Rai died leaving behind his widow Daulat Kuer, defendant 1, and his son Bisbundeo Rai. The latter is said to have died about 14 years ago. The plaintiff's case further was that on 18th July 1937 certain properties were given by her to Daulat Kuer defendant 1, by way of maintenance by a registered document EX. a. But now the plaintiff has come to learn that by practising fraud on her instead of a deed of maintenance, a deed of partition had been brought into existence. She further averred that defendant 1 in collusion with her brother Chulhan Singh had brought into existence the rehan bond and the sale deed in question which she had no right to execute and which are not binding upon the plaintiff. The sale deed had in fact been taken by Chulhan Singh in the farzi name of a relation of his.
3. The case of the defendants, on the other hand, was that Ramdutt and Bishundeo were separate, and defendant 1 had inherited the properties of Bishundeo as his mother. The deed of partition dated 18th July 1936, was a genuine document. No fraud had been practised on the plaintiff at the time of the execution of the said document which was executed by the plaintiff after she bad fully understood the same. The rehan bond had been redeemed by the sale deed which, according to the defendants, wag a genuine transaction and was binding upon the plaintiff. According to the defendants the suit as framed was barred by limitation.
4. The trial Court came to the conclusion that Ramdutt and Bishundeo had separated. The deed of partition dated 18th July 1936, had been validly executed by the plaintiff and defendant l, and no fraud had been practised on the plaintiff as alleged by her. It was further of opinion that the deed of partition, EX. A, was never meant to be a deed of maintenance. On the question of the plea of limitation as raised by the defendants, the trial Court came to the conclusion that the suit as framed was barred by limitation. According to it, the period of limitation applicable to the present suit was that provided by Article 120, Limitation Act and, not Article 125 of the same Act.
5. On appeal by the plaintiff, the lower appellate Court accepted the finding of the trial Court disbelieving the case of the plaintiff that fraud had been practised upon her at the time of the execution of Ex. A. The lower appellate Court also came to the conclusion that no fraud had been practised upon her. It, however, came to the conclusion that Ramdut and Bisbundeo had not separated, that Ramdut had died last of all, and in this view of the finding the document, EX. A, might be construed to have been executed for maintenance of defendant 1. According to the lower appellate Court, the sale deed in question had been taken by Chulhan Singh, brother of defendant 1, in the farzi name of his relation, Sheonandan Singh. According to that Court, the suit was not barred by limitation, as the period of limitation applicable would be one provided by Article 125, Limitation Act. According to the lower appellate Court the suit was not barred even if Article 120, Limitation Act, applied as the plaintiff knew of the sale deed in question only six or seven months before the filing of the suit which was filed on 11th February 1944. According to it, the time would begin to run under Article 120 from the date of knowledge. In that view of the matter, it reversed the decree passed by the trial Court and decreed the suit of the plaintiff resulting in the above mentioned second appeal by defendants 1 and 2.
6. In this Court the learned Advocate for the appellants urged that the suit as framed was barred by limitation, as, according to him, the period applicable for such a suit would be the period provided by Article 120, Limitation Act. In support of his contention the learned Advocate cited the case of Kanhya, Lal v. Mt. Hira Bibi, 15 Pat. 151 : (A. I. R. (23) 1936 Pat. 323).
Article 125, Limitation Act, runs as follows :
"Description of suit.
Period oflimitation.
Time from which period begins to run.
125. Suit during the life of a Hindu ot Muham-madan female by a Hindu ot Mubammadaa who it the female died at tha date of ingtitating the suit, would be entitled to the possession of land, to have an alienation of each land made by the female declared to he void except tor her life or until her re-marriage."
Twelve years.
The date of alienation.
Their Lordships of the Patna High Court in that case held as follows :
"It was contended on behalf of the defendants that the present suit comes within the four corners of this article at the plaintiff if a Hindu who claims a right to succeed on the death of a Hindu female and seeks a declaration that the alienations made by her are void. In our opinion, however, this article applies when the possession is that of a Hindu or Mubammadan female as such, that is to say, by virtue of her being a Hindu or Mohammadan, and does not apply if her possession is by virtue of a grant or transfer made inter vivos or by virtue of a bequeat, or in other words, when her possession is irrespective of her being a Hindu or Muhammsdan female."
7. I respectfully agree with tbe view taken by the learned Judges. If the case of the plaintiff is true that Daulat Kuer, defendant 1, bad not inherited any property from her son, Bishundeo Rai and that she derived all her interest by the document dated 18th July 1936, then in that case an alienation made by her would not attract the operation of Article 125, Limitation Act, and the suit must be governed by the provisions of Article 130, Limitation Act, which runs as follows:
"Description at suit.
Period of limitation.
Time from which the period begins to run.
120. Suit for which no period of limitation is provided elsewhere in this schedule."
Six years.
When the right to me accrues.
Mr. D. N. Varma, the learned advocate for the plaintiff-respondent, in reply, urged that the case would be covered by the provisions of Article 125, Limitation Act, and in support of his contention he relied upon the caae of Mt. Nandan v. Wazira, a Lah. 215 : (A.I.R. (14) 1927 Lah, 198). But this decision of the Lahore High Court was not accepted as laying down tbe correct law by the learned Judges who decided the case of Kanhya Lal v. Mt. Hira Bibi, 15 pat. 151 : (A. I. R. (23) 1936 Pat. 323). Besides a later Full Bench decision of the Lahore High Court in the case of Arura, Mal v. Mt. Sandhuran, A.I R. (34) 1947 Lah. 290: (49 P.L. R. 167 F. B,), agreed with the decision of Una Court reported in Kanhya Lal v. Mt. Hira Bibi, 15 Pat. 161 ; (A.I.R. (23) 1996 Pat. 328). Mr. Varma further argued that even if Act. 120, Limitation Act applied, time would begin to run only from the date of knowledge of the plaintiff regarding the sale and the rehan deeds, which was about six or seven months before the filing of the suit. In support of his contention ha cited the case of Muruga Chatty v. Rajaswamy, 30 I. C. 669 ; (A. I. R. (3) 1916 Mad. 130). In that case persons interested in the trust had filed a suit for a declaration that an alienation made in respect of truat properties by a sale-deed in the year 1893 was not binding upon the trust. In that connection their Lordships of fee Madras High Court came to the conclusion that the cause of action for a declaratory suit based on denial of title, did not arise until the plaintiff has knowledge of the denial. Mr. Varma next relied upon the case of "In the matter of the Indian Companies Act" 34 Bom. 533: (7 I. C. 452). But, in my view, that case has no application to the facts and circumstances of the present case. I do not find any question of the applicability of Article 120, Limitation Act, having been discussed in that case which may be of any assistance to the plaintiff. The case of Dattatraya Pandurang v. Lakshman Mahadev, A. I. R. (19) 1932 Bom. 15 : (186 I. C. 161), how-ever, has laid down that the cause of action for getting a declaration in respect of an alienation accrues when the document is executed and time does not begin to run from the date of knowledge. It is not necessary for me to give a decision as to which of the two views, one held by the Madras High Court and the other by the Bombay High Court, is correct, because I am going to hold that the plaintiff's suit is bound to fail on the other grounds as discussed below.
8. Mr. Verma has further referred to the case of Sri Gajapathi Nilamani v. Sri Gajapathi Radkamani, 4 I. a. 212: (l Mad. 290 P. C.) and the case of Bhugwandeen Dooley v. Myna Baee, 11 M.I. A. 487: (9 W. R. 23 P. C.), but both these cases are cases where the rights of two co-widows have been considered, and they are not relevant to the matter in dispute in the present suit. Mr. Varma also relied upon the case of Bolo v. Koklan, 57 I. a. 325 : (A. I. R (17) 1930 P. C. 270). That case while considering the provisions of Schedule I, Article 120, Limitation Act, concerning the expression "the right to sue accrues" held that it would accrue only when the defendant has infringed, or at least has clearly and unequivocally threatened for infringe, the right asserted by the plaintiff in the suit. In the light of the decision of the Privy Council the plaintiff's right cannot be considered to have been infringed. Her cause of action in that case would accrue only after the death of defendant 1, when the vendee will refuse to deliver possession to the rightful claimant. Mr. Varma also relied upon the cases of Mahammad Umar v Muhammad Ibrahim, A. I. R. (ao) 1933 Lab. 270 ; (143 I. C. 725) and Kandasami Pillai v. Munisami Mudaliar, A. I. R. (19) 1932 Mad. 589 : (137 I. C. 707). In the former case it was held that under Article 120, time would commence to run from the date when the mortgage was sought to be enforced by institution of a suit and not from the date on which the mortgage was executed. In the latter case also it was held that under Article 120, Limitation Act, time begins to run from the date of the institution of a mortgage suit and not from the date of the execution of the mortgage which had been executed in respect of trust property. These two cases, in my opinion, do not help the plaintiff.
9. The plaintiff's suit, however, is bound to fail on another ground. From a perusal of the deed of partition dated 18th July 1936, it appears that the document had been executed to settle a dispute between the two ladies, and the document clearly described that both of them were owners of the properties dealt with in that document. It further recited that one would have nothing to do with the properties that had been allotted to the share of the other and each of them had the right to deal in whatever way she liked with the properties allotted to her share, The document can safely be regarded as a deed of family arrangement, and the plaintiff being a party to it cannot be allowed to turn round and say that the document had been executed to allow defendant 1 to have those properties by way of maintenance. The findings of the lower appellate Court that Ramdutt and Bishundeo were joint and Ramdutt bad died last would not affect the arrangement that had been arrived at by EX. A. In this view of the matter, the plaintiff has no right to challenge the alienation made by defendant 1. The plaintiff's case all along had been that she was not entitled to claim the properties as long as Daulat Kuer, defendant 1 was alive. In my view, however, the plaintiff is not entitled to bring the present suit as framed.
10. Only a presumptive reversioner has a right to bring a suit for declaration during the life-time of a limited owner, who is in possession of the properties by inheritance, challenging an alienation made by her. That suit by a reversioner has to be brought in a representative capacity for the benefit of the actual reversioner when the reversion opens. On a reference to the plaint I find that the present suit has not been filed as a representative suit. So, in any view of the matter, the suit as framed is not maintainable.
11. The result is that the appeal is allowed judgment and the decree passed by the lower appellate Court are act aside and those of the trial Court restored, except as to coats. In tbe circumstances of the present case, each party is to bear its own costs throughout.
Sinha, J.
12. I agree.